tenancy law

In the dispute over the Berlin rent index 2021, there is now a judgment by the regional court that supports the rent index – and benefits tenants and landlords alike. The 67th civil chamber of the district court decided on June 9 that the rent index 2021 was a “suitable justification” for a rent increase, even if the work was “not a simple or qualified rent index” within the meaning of the law.

With the judgment, the regional court is correcting a decision by the Spandau district court from January 2022. The Spandau court had declared the 2021 rent index invalid and rejected a landlord’s request for a rent increase based on it.

In the 2021 rent index, Spandau saw neither a qualified rent index with particularly high requirements, nor a simple rent index. From the point of view of the court, the 2021 rent index was an inadmissible update of the 2019 rent index. Other district courts, including those in Neukölln and Lichtenberg, had found that the 2021 rent index was applicable.

Tenants would have found it harder to control claims

If the district court had followed the opinion of the Spandau judges, this would have had far-reaching consequences, at least for the area of ​​responsibility of the 67th civil chamber – for Spandau, Mitte, Prenzlauer Berg and Tiergarten.

This would have been disadvantageous for tenants and landlords alike. Landlords would then have had to justify rent increases in other ways, for example by naming three comparable apartments or an expert report, so they would have had to put in more effort for a normal rent increase. On the other hand, tenants would have been threatened with stronger demands from landlords for the other reasons for rent increases, which are also more difficult to control.

Tenant and Consumer Protection Association: Victory for tenants and landlords

The Alternative Tenant and Consumer Protection Association (AMV) sees the district court’s ruling as a “victory for Berlin tenants as well as for landlords,” as AMV boss Marcel Eupen says. “Rent increase requests can still be justified with the Berlin rent index 2021 and are formally effective, even if this is neither a qualified nor a simple rent index,” says Eupen. “There is no need to obtain expensive expert opinions,” says the AMV boss.

The regional court supports the rent index 2021, but not without restrictions. The 67th Civil Chamber explained that the purpose of the legal obligation to justify rent increases was to “give the tenant initial indications of the factual justification of the demand for a rent increase”. The 2021 rent index “definitely” meets these minimum requirements.

Almost curious: To determine the local comparative rent, which results in a possible rent increase, the district court does not rely on the 2021 rent index, but on the 2019 rent index. It can be left open whether the 2021 rent index is suitable for determining the local rent , if “a judicial estimate based on a previous rent index is possible”, the judges explain. In the present case, the regional court classifies the rent index from 2019 as a suitable basis for estimation.

The judgment initially only provides legal certainty for some of the tenants

On the reference date of the 2019 rent index on September 1, 2018, the rent for the apartment in the present case was 8.03 euros per square meter of living space. The landlord’s request for a rent increase, which wanted to raise the rent to EUR 7.64 per square metre, does not exceed the usual local rent. It can be assumed “due to the general price increase” that the local rent in the period from September 1, 2018 until the receipt of the rent increase letter in June 2021 did not fall from EUR 8.03 per square meter to the EUR 7.64 only requested by the landlord .

It remains to be seen whether the action of the district court is the last word, says AMV boss Marcel Eupen. “At least it is a useful way to calculate the permissible net rent.” Tenants who live in Spandau, Mitte, Prenzlauer Berg or Tiergarten, i.e. in the areas for which Civil Chamber 67 of the Regional Court is responsible, have Boss Eupen currently legal certainty.

It remains to be seen whether the other four rental appeal chambers of the district court will follow the legal opinion of the 67th chamber or come to a different legal opinion, says AMV boss Eupen. “As long as there are no decisions from all five district courts, there will continue to be legal uncertainty for all tenants and their landlords who do not live in Spandau, Mitte, Prenzlauer Berg or Tiergarten.”

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